King’s legacy remains unrealized in too many Kentucky classrooms

page-0 (2)As Kentuckians have homage today to the legacy of Dr. Martin Luther King Jr. at many events throughout the commonwealth on what would have been the 89th birthday of the civil rights pioneer, it’s important to remember what’s been accomplished as well as that which remains undone and, perhaps most importantly, what’s possible when it comes to ensuring that every Kentuckian — no matter race, socioeconomic background or zip code — has the opportunity to strive for the individual liberty and pursuit of happiness enshrined in our nation’s founding.

I recently had the opportunity to stop by Ebenezer Baptist Church in downtown Atlanta where Dr. King co-pastored with his father “Daddy” King for many years and where his son was eulogized following his assassination in 1968 and reflect not only on the challenges that remain in our nation to achieving Dr. King’s dream but also on the significant progress made toward achieving true equality of opportunity.

It would be difficult for even the most-hardened race baiters to deny that Dr. King’s dream that “one day little black boys and girls will be holding hands with little white boys and girls” is more a reality now than ever before. There was a time, after all, when the President of the United States had to send in federal troops to ensure our public schools would no longer be segregated. That, fortunately, is no longer the case.

Now just as unfortunately, a different kind of segregation exists in our public-school classrooms.

Tragically, the situation continues to worsen rather than improve.

Some say Kentucky’s schools can’t overcome these types of achievement gaps. However, we have examples of schools with very low gaps in the white minus black math proficiency rates despite poverty rates well above state average. For example, Wilt and Crofton elementary schools in Jefferson and Christian counties, respectively, have math proficiency rate gaps of less than one percentage point and school lunch eligibility rates nearly eight points above the state average.

Yet while these schools demonstrate it’s possible to close or even eliminate achievement gaps, that isn’t the trend in Kentucky:

  • In KPREP Algebra II End-of-Course testing, the white minus black proficiency rate gap jumped up notably from 16.8 percentage points in 2016 to 23 percentage points in 2017.
  • In KPREP middle school reading, the white minus black proficiency rate gap of 28.3 percentage points in 2017 was the largest gap ever posted for this subject and school level since KPREP started in 2012.
  • The gap picture for KPREP elementary school reading mirrored the middle school results. Kentucky’s elementary school white minus black reading achievement gap in 2017 was the largest ever recorded for KPREP.
  • In Kentucky’s 11th grade ACT testing, the math score gap between white and blacks in 2017 is exactly the same as it was in every previous year from 2013 on except for 2015. The gap isn’t getting better.

Sadly, many individuals and organizations who claim to carry King’s mantle in the civil rights movement either ignore or dismiss the story of educational inequality told by these numbers.

One of the primary reasons the Bluegrass Institute continues to advocate giving parents choices concerning where their children receive are educated is because no child should be trapped in a failing school simply because their family is poor or can’t write a big tuition check. Too much evidence now exists showing that while school-choice programs, including charter schools, scholarship tax credits and Education Savings Accounts, may not save every poor black child, it’s creating life-changing opportunities for millions of American children who otherwise would fall through the cracks and wind up on welfare, the street corner, prison or the morgue.

We’ll continue to promote school-choice policies built on the idea that parents, not bureaucrats, politicians or administrators, know what’s best for their children, and that families deserve options so Kentucky’s kids — especially those that already have two strikes against them in life — have a chance.

Don’t tell me Dr. King wouldn’t have agreed.

“I have the audacity to believe that peoples everywhere can have three meals a day for their bodies, education and culture for their minds, and dignity, equality and freedom for their spirits.”

…and so do we…

‘The Post’: A reminder of the importance of the courts in defending the public’s right to know

COG2A recent article in the Corpus Christi Caller Times heralds the release of “The Post”–Steven Spielberg’s dramatization of the internal and external battles that accompanied the Washington Post’s 1971 publication of the Pentagon Papers–and reminds us of the importance of the courts in protecting the public’s right to know at the federal, state and local level.

The article focuses on the challenge now confronting Texans in exercising their rights under the state’s Public Information Law—the Texas equivalent of Kentucky’s Open Records Law– following a major setback in the courts and “a mighty but ill-fated [legislative] effort to put some of the teeth back into Texas’ open government laws.”

That case, The Boeing Company v. Ken Paxton, involved a public information request for, among other things, the lease between the Boeing Company and the Port Authority of San Antonio. Boeing resisted disclosure of portions of lease containing what it deemed proprietary information, unsuccessfully litigating the issue through the Texas Attorney General’s Office, a trial court, and the Texas Court of Appeals. However, Boeing prevailed in the Texas Supreme Court.

The Court’s opinion, the Caller Times observes, “opened up a loophole that pretty much allows businesses to declare almost anything to be a trade secret, even how much a city pays an entertainer for singing at a city celebration.” And, as noted, attempts to legislatively close the loophole have not yet succeeded.

Anyone who needs a reminder about the importance of the public’s right to know should take a moment to watch Texas Representative Terry Canales impassioned speech on the House floor indicting those who blocked efforts to reinvigorate the Texas Public Information Law. “Some say ignorance is bliss,” he declares, “I say information is power.” Take a moment to watch.

Kentucky’s Open Records Law contains a narrow exception for “records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records.” The corresponding exception in Texas’s law is much broader.

It is highly unlikely that the Kentucky attorney general, a Kentucky circuit court, the Kentucky Court of Appeals, or the Kentucky Supreme Court would affirm Boeing’s position under Kentucky law if the same issue were presented here. This is primarily because a lease is not a record “confidentially disclosed to an agency or required by an agency to be disclosed to it.” Kentucky’s exceptions must be “strictly construed,” and a lease does not qualify for protection under the first part of the exception.

In this, Kentucky is fortunate. Our attorney general and courts must interpret the narrowly worded exceptions to the Open Records Law strictly and in a manner consistent with the legislative presumption favoring openness. And they only rarely disappoint.

In the most recent example of judicial protection of the public’s right to know, the Franklin Circuit ordered the Kentucky State Police to pay $24,000 in attorney’s fees, costs and penalties in a case involving a mother’s protracted battle to obtain records relating to the disappearance of her daughter in 1995. On January 5, the court sanctioned KSP because it “lacked plausible justification for withholding the records” and “did so in conscious disregard of [the requester’s] rights.”

Kentuckians owe a tremendous debt to the framers of our Open Records Law, the legislators who enacted and have preserved it, and those who have championed it inside and outside the courtroom through its forty plus year history. But administrative and judicial protection of the Open Records Law is essential to a vigorous Open Records Law and an informed people. Like Texas Representative Canales, the Center for Open Government believes that information is, in fact, power.

-Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government.

Other states getting tough about school spending oversight

Maybe it’s time for Kentucky to do the same

Education Week reports that a number of states such as Maryland, Oklahoma, Washington and Kansas are starting to raise questions and even call for investigations into how state education dollars are actually being spent.

Some of this is being encouraged by new requirements to show accurate per pupil spending amounts for all schools.

Certainly, we have never had really accurate and comparable per pupil spending reports for Kentucky’s schools. For example, in 2015-16 the Kentucky School Report Cards “Data Sets” Excel spreadsheet for LEARNING_ENVIRONMENT_STUDENTS_TEACHERS shows the Payneville Elementary School in Meade County supposedly spent only a ridiculously low $120 per pupil. The state average that year was over $10,000 per pupil. Clearly, the Payneville number is just flat wrong, but it is about the only school level funding data you can find.

By the way, the LEARNING_ENVIRONMENT_STUDENTS_TEACHERS Excel spreadsheet for 2016-17 doesn’t even have entries in the per pupil spending column, possibly because I suggested to the Kentucky Department of Education that if they can’t get the numbers close to credible, they are probably better off not publishing anything.

In any event, if our educators cannot accurately tell us the overall total amount of money we are spending per student in each school, we clearly have a problem that needs more investigation. Our educators keep saying they need more money, but how can they know that if they don’t seem to even know how much they are getting now?

International tests for babies?

The Program for International Student Assessment (PISA) tests for 15-year olds have been around for a long time, comparing results for teens in different nations around the world on tests of math, reading, and science. Usually, US results are less than stellar.

But…Baby PISA! According to Helge Wasmuth, an associate professor of early childhood and childhood education at New York’s Mercy College, Baby PISA is coming, and hardly anyone knows it.

More importantly, Prof. Wasmuth raises some serious questions about how this program is being developed and how babies are going to be evaluated. Certainly, with many educators reluctant to start doing evaluations of children even in the lower elementary grades (hence Kentucky’s current KPREP tests don’t start until the third grade), whether a meaningful evaluation of 3-year olds is even possible seems very much in question.

Wasmuth isn’t alone with concerns about this new program. Truth in American Education has weighed in, and they are not pleased.

If your toddler is selected for this dubious program, I would strongly suggest parental caution.

That’s assuming someone is even informing parents that their toddlers are being used in some sort of international comparison study.

Bluegrass Beacon: New pension paradigm protects taxpayers, benefits workers

BluegrassBeaconLogoRep. Jerry Miller, R-Louisville, was on the right side of principle when he said recently on KET’s “Kentucky Tonight” program that he doesn’t deserve to be re-elected if he doesn’t have the “courage to make the right vote for Kentucky.”

There’s no question that Miller, like other conservatives who’ve expressed similar sentiments – including Gov. Matt Bevin, have the right motives and sentiments regarding leadership and votes on politically tough issues.

But what if you could simultaneously choose both the right and best options, secure enough votes for passage and then live politically to fight another day for policies that build upon those reforms and make Kentucky an economic powerhouse?

Moving state workers and teachers into a defined-contribution system where they, as beneficiaries, have more responsibility while eliminating taxpayers’ risk is undoubtedly the right move from a politically conservative and philosophical viewpoint.

However, isn’t it also right to ensure that retired teachers don’t outlive their resources and end up on welfare?

Stopping the digging of our seemingly ever-deepening pension hole by ceasing to promise or provide arbitrarily-enhanced benefits at levels that are neither affordable nor legal is right.

So is ensuring that the retirement plans into which beneficiaries and retirees have contributed are stable and remain sustainable in order to provide promised defined benefits.

Keeping promises; protecting taxpayers.

Both are right.

The Bluegrass Institute Pension Reform Team’s new proposal does all of those “right” things but looks different than any previous model.

This new paradigm establishes benefits based upon a fixed percentage-of-payroll contribution combined with the overall performance of the systems.

It proposes a 15-percent payroll contribution for Teachers’ Retirement System (TRS) members, with employees contributing 9 percent and the employer – taxpayers – kicking in 6 percent.

Unlike the current setup, where the systems’ bureaucrats run to lawmakers incessantly with both hands out looking for more money from taxpayers to cover unfunded liabilities, this new approach offers incentives for the systems to avoid such deficits altogether by requiring administrators to lower benefits in order to address previous shortfalls.

Taxpayers are protected by ensuring that their payroll contribution as the employer remains steadfast at 6 percent throughout the whole process.

While we proposed the above approach specifically for TRS, it can be used with any defined-benefit system, with the contribution levels negotiated between the state and its workers.

The systems would be incentivized to establish much more conservative investment-return assumptions since beneficiaries rather than taxpayers would be on the hook for liabilities created by overly optimistic assumptions.

More conservative assumptions combined with expected brisk returns during upcoming years would also create a splash of surplus funding for paying down the current $65 billion unfunded liability, improving Kentucky’s credit rating and lowering borrowing costs needed to build new schools and courthouses.

Beneficiaries should demand that their groups’ talking heads – who spend excessive amounts of time in Frankfort but little time listening to constituents – get on board with this approach, which:

  • removes control of the pension system – primarily the establishment of benefits – from politicians and gives it to the systems’ administrators
  • guarantees the systems’ solvency, unlike the hard landing that comes with placing all new hires into a straight 401(k)-style system, which will divert funds needed for stable cash flow, result in lower investment returns and force liquidation of remaining investments just to cover the next round of benefit payments
  • offers security by guaranteeing adequate funding for a lifetime via defined benefits that are always fully funded while avoiding the deep hole of costly unfunded liabilities

It would be both courageous and “right” for policymakers and beneficiaries to lay down their ideology and consider a plan that gives taxpayers the protections of a defined-contribution plan, beneficiaries the security of a solvent defined-pension benefit and Kentucky a brighter new year.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Reach him at jwaters@freedomkentucky.com and @bipps on Twitter.

BIPPS’ new pension strategy provides benefits, protects taxpayers

BIPPS Pension Point (4)

2017 in review: the top ten Kentucky open meetings and records stories of the past year

COG2Its easy to identify the most significant years in the history of the Open Meetings and Open Records Acts since I first professionally encountered them as an assistant attorney general in 1991.

In 1992 and 1994, for example, the legislature dramatically overhauled the then nearly 20 year old acts, clarifying—among other things– the attorney general’s role as a formal mediator of meetings and records access disputes between citizens and public agencies. The attorney general’s decisions in these disputes were thereafter statutorily recognized to have the “force and effect of law” if not appealed to the courts.

It was also in 1992 that the Kentucky Supreme Court issued a landmark opinion—Kentucky Board of Examiners of Psychologists v. Courier Journal—declaring, among other things, that our laws “exhibit a general bias favoring disclosure.” The case established the roadmap for future interpretation and inaugurated a period of vigorous judicial interpretation that continues to this day.

The following years witnessed highs and lows in open meetings and open records analysis.

2005, for example, is remembered as the year Kentucky came to terms with the grim realities of the modern world—to which we had been tragically awakened four years earlier—by enacting a homeland security exception to the open meetings and open records laws. The exceptions are narrowly drafted and rarely successfully invoked but available in those unusual cases where disclosure “would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in. . .protecting against. . .a terrorist act.”

In 2008 the courts issued an opinion whose humble origins bely its great importance. Commonwealth v. Chestnut involved a prison inmate’s attempts to obtain the nonexempt portions of his inmate file. It  remains—in my view—one of the most significant cases issued in the 40 plus years of the laws’ existence.

2013 was a year of unprecedented activity in the courts. In a series of opinions, the courts advanced—mostly–the laws and overruled a 1992 opinion that led law enforcement agencies to erroneously believe they could deny access to all investigative records while an investigation was “open.”

2016  stands out as the year in which the courts penalized the Cabinet for Health and Family Services in a case involving willful nondisclosure of records relating to the deaths or near deaths of neglected, abused and dependent children under its supervision in an amount exceeding $756,000. The Court expressed “exasperation at the Cabinet’s systematic and categorical disregard for the rule of law” and declared that “[t]he Open Records Act is neither an ideal nor a suggestion. It is the law. Public entities must permit inspection of public records as required or risk meaningful punishment for noncompliance. Rigid adherence to this stark principle is the lifeblood of a law which rightly favors disclosure, fosters transparency, and secures the public trust.”

2017 will be remembered as a year that did not, generally, disappoint proponents of open government. It requires little effort to identify the top ten open meetings and records stories of the past year. They are, in no particular order:

  1. Audit finds willful obstruction of the public’s right to know by the University of Louisville and its Foundation: a June 2017 audit revealed that University and Foundation officials and employees “engaged in a course of conduct aimed at evading public scrutiny through malicious evasion, obfuscation and secreting away of public records on non-foundation premises” to conceal exorbitant spending practices. Our analysis of these offenses can be found here.
  2. Kentucky Supreme Court confirms the public’s right of access to the financial records of a utilities management company:  privately incorporated but wholly funded through its contract with local government, Utility Management Group  had evaded scrutiny since 2011 asserting that it was not a public agency for open records purposes. A 2012 amendment to the Open Records Act cast doubt on the attorney general’s 2011 decision that UMG’s financial records were subject to inspection, but in November the Court rejected the argument in Utility Management Group LLC v. Pike County Fiscal Court. We examined the case here. A recent article in the Appalachian News Express indicates that the fiscal court has not yet obtained UMG’s financial records. Since the Supreme Court remanded the case to the Pike Circuit Court with directions to enter an order directing disclosure, we trust there will be no further delays.
  3. Finance and Administration Cabinet appeals The State Journal’s favorable attorney general open meetings ruling: in October the attorney general determined that the Finance Cabinet’s refusal to publicize — and admit the public to —  meetings of the Capital Plaza built-to-suit selection committee–a committee established by statute with express authority to conduct specified business, but not all business, in closed session– violated the Open Meetings Act following The State Journal’s legal challenge. The Cabinet appealed the attorney general’s decision, naming the reporter who initiated the challenge as defendant, and the issue is currently pending in the Franklin Circuit Court. Our report on the case can be found here.
  4. State universities’ ongoing lawsuits against their student newspapers, in which the attorney general has intervened, yield mixed results: in 2016, the attorney general determined that the University of Kentucky failed to prove that records relating to sexual harassment complaints against a professor were excluded from public inspection when the university refused to honor the attorney general’s statutory request to conduct a confidential review of the records to confirm or refute the university’s position. UK appealed, other universities followed suit, and the Attorney General intervened to preserve his office’s statutory right to confidentially review agency records in open records disputes. In August, the Fayette Circuit Court ruled that UK was not required to honor the attorney general’s request to review records — if characterized by the university as “education records” — for purposes of mediating an open records dispute. In October, the Franklin Circuit Court reached the opposite conclusion in a case involving the UK student newspaper and Kentucky State University, expressly rejecting the Fayette Circuit Court’s analysis. The cases are pending in the Kentucky Court of Appeals.
  5. Danville Advocate Messenger prevails in protracted open meetings litigation with the City of Danville: in a rare open meetings opinion, the Kentucky Supreme Court held that closed board meetings at which the Danville Board of Commissioners agreed to bid on a building that had come up for sale at an absolute auction — and decided on a maximum bid — were impermissible under the open meetings exception for “[d]eliberations on the future acquisition or sale of real property by a public agency, but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by a public agency”  and therefore violated the law. Unfortunately, the Court reversed the lower court’s award of attorneys’ fees, and the newspaper must absorb the cost of the lengthy and expensive litigation. We reported on the case here.
  6. House of Representatives releases an arguably exempt “preliminary” investigative report involving sexual harassment allegations leveled against Representative Jeff Hoover but Kentucky Retirement System refuses to release a nonexempt “post-decisional” actuarial analysis of the published pension reform bill: on December 3, the Center for Open Government commended the House of Representatives for its decision to release a “preliminary” investigative report relating to allegations of misconduct leveled against the House speaker prepared by a Louisville law firm. In the same post, we criticized the Kentucky Retirement Systems’ refusal to release an actuarial analysis of the published pension reform bill based on its claim that it does not possess a copy of the analysis and its suggestion that all future requests for the analysis be referred to State Budget Director John Chilton. We maintained that “Chilton does not have unilateral authority to deny the public access to the report, and KRS is foreclosed from ceding its open records decision making authority on the report, or any other record that it prepares, owns, uses, possesses or retains, to a single trustee.” The issue has been appealed to the attorney general and an open records decision is expected soon.
  7. City of Taylorsville requests that the Spencer Circuit Court impose punitive and compensatory damages on an open records requester: in an unprecedented and wholly unauthorized move, the Taylorsville is seeking damages from an open records requester who received a favorable ruling from the attorney general in an open records dispute involving access to responses filed by city commissioners to ethics complaints against them. The city appealed the attorney general’s decision and included a claim for damages based on the requester’s publication of the corresponding complaint which he obtained by means other than an open records request. The case is set for a hearing on February 8 in the Spencer Circuit Court on a motion to dismiss alleging, among other things, that the claim for damages is intended to intimidate and bully the requester from exercising his open records and First Amendment rights. We examined the case here.
  8. Fayette Circuit Court declares that the University of Kentucky violated the Open Meetings and Open Records Acts in responding to the Lexington Herald-Leader’s open meetings complaint and records request: in June, the university refused to release an audit conducted at its chief compliance officer’s direction following receipt of complaints concerning a then-recently acquired heart clinic in Eastern Kentucky and a related PowerPoint presented to the board of trustees by outside counsel at a regularly scheduled dinner meeting held the night before its May 2016 business meeting. Our analysis of the opinion, which has not been appealed, is found here.
  9. Open records and meetings staff of the Kentucky Attorney General’s Office issues multiple decisions advancing the public’s right to know: while we have not endorsed every decision issued by the open records and meetings staff in 2017, there were several decisions that dramatically moved the laws forward. These include 17-ORD-224in which the staff determined that the Cabinet for Health and Family Services violated the Open Records Act in withholding investigative records relating to a murder/suicide involving a young child and his mother, both under the Cabinet’s supervision, without showing how release of the records “poses a concrete risk of harm” to the agency in “a prospective action.” As we observed in our analysis, “The law is clear on this point, and past open records decisions should no longer muddy these waters.” In 17-ORD-268, the staff  correctly determined that the Office of the Governor violated the Open Records Act in denying a request for the keywords used to filter “profane, obscene, or clearly off-topic comments” from its Facebook page. And in a decision that has not yet been posted on the attorney general’s website—17-ORD-273–the staff determined that the University of Kentucky improperly allowed an employee to conduct public business on his private e-mail account through automatic forwarding of all messages on his public account, failed to conduct an adequate search for the emails and failed to properly maintain public e-mail in a manner consistent with proper records management practices.
  10. Bluegrass Institute Center for Open Government receives a favorable decision from the attorney general in an open meetings challenge involving a closed meeting of a quorum of the members of the House of Representatives at which public business was discussed and the House appeals that decision to the Franklin Circuit Court: on November 30, 2017, the Kentucky House of Representatives filed an appeal in the Franklin Circuit Court from an open meetings decision issued by the attorney general on November 1 determining that the House violated the Open Meetings Act when it conducted a closed meeting of a quorum of its members–without legal justification–to discuss pension reform. The Bluegrass Institute Center for Open Government challenged the House’s illegal closed session in a complaint to the Speaker of the House and an appeal to the attorney general. The Bluegrass Institute is therefore named as defendant in the appeal to the Franklin Circuit Court. The long term implications of the case have been examined in a number of posts the latest of which can be found here.

We include at number 11 on our list of the most important open meetings and open records stories of 2017, and at the risk of immodesty, the creation of the Center for Open Government within the Bluegrass Institute in early 2017 and the publication in May of our report, “Shining the Light on Kentucky’s Sunshine Laws.”  In that report, we call for clarification, reconciliation, and modernization of the Open Meetings and Open Records Acts which were last substantially amended in 1994. We undertake this initiative as a means of furthering the Bluegrass Institute’s longstanding commitment to promoting the goal of open, transparent and accountable government.

All in all, 2017 has been a reasonably good year for open government.

Bluegrass Beacon – Education’s holy grail: Achievement, not racial quotas

BluegrassBeaconLogoEditor’s note: The Bluegrass Beacon is a weekly syndicated statewide newspaper column posted on the Bluegrass Institute website after being released to and published by newspapers statewide.

“All I want for Christmas is for Republicans to act like Republicans,” I recently wrote on Facebook.

Responders aren’t optimistic.

“LOL Jim Waters … I’ll bet you still believe in Santa too!” wrote one friend who’s obviously frustrated with the current state of our political environment.

To avoid a completely empty stocking in case Republicans can’t stop the erosion of “Grand,” leaving them simply with an “Old Party,” I wonder if Santa could find me a major media organization without ideological bias and, worse, intellectual laziness when it comes to reporting on charter schools.

This request comes following publication of a recent Associated Press hit piece on charter schools dressed up as “analysis,” blaming these schools of choice for resegregating America’s public-education system simply because their student populations frequently reflect the high-minority, low-income makeup of the communities in which they’re located.

Nothing in the AP article reports how these schools offer solid evidence-based hope for closing achievement gaps between whites and blacks.

Not even a nod is given to how 95 percent of the 5,821 students attending Success Academy Charter Schools in New York were proficient in math and 84 percent were proficient in English during the 2016-17 school year even though 73 percent of those scholars came from poor homes.

There was no mention about these charter schools’ English Learner (ELL) and learning-disabled students not only surpassing other ELL and special-needs students across New York but also outperforming native English speakers and students without disabilities, respectively, across the Empire State.

Wouldn’t unbiased reporting note the growing academic-achievement gap between whites and blacks in the Jefferson County Public Schools – one of America’s largest districts – as a stark example of the reality that racial parity in the classroom doesn’t guarantee academic equality?

Wouldn’t fairness demand reporting about how assigning and then busing low-income minorities to schools in suburbia in the blessed name of “diversity” doesn’t work?

Bluegrass Institute research indicates that 14 of the district’s 19 elementary schools with white-black proficiency gaps of 30 points or more are in the suburbs east of Interstate 65.

Such exclusions don’t escape the attention of New York Magazine writer Jonathan Chait, who responded to the AP’s analysis with an article entitled: “Charters Didn’t Cause Segregation. They’re a Solution for Its Victims.”

Chait may be over-the-top in claiming that the “deep cause of segregation is residential living patterns driven by decades of racist housing policy.”

What cannot be disputed, however, is his assertion that charter schools fill with poor, minority students because they most often open in urban-area neighborhoods reflecting those same demographics.

Also indisputable is Chait’s observation that without the opportunity for charter schools, “the schools those children would otherwise be attending are also segregated.”

His conclusion offers a much-needed reality check for anti-school choice ideologues who would sacrifice important opportunities for this generation on the holy grail of some future generation’s altar of desegregation.

Minority children living in low-income zip codes shouldn’t be relegated to a poor education just because nobody’s “formulated a plan to achieve large-scale school integration that stands any practical chance of success during the lifetime of today’s students,” he writes.

While working for desegregation is always noble and necessary, Chait urges “it cannot be the only mechanism to allay the appalling lack of educational opportunity given to children in segregated neighborhoods.”

As charter schools become available in Kentucky, parents should ignore the insidiousness of the AP’s shoddy “analysis” and instead snatch today’s opportunity to give their children for whom the clock is ticking the best education possible.

What better way to break chains of segregation and poverty than by giving children trapped in them the kind of education that allows them to build or buy a house in whatever neighborhood they choose?

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Reach him at jwaters@freedomkentucky.com and @bipps on Twitter.

Kentucky House of Representatives v. Bluegrass Institute

COG2Few things are more familiar to regular television viewers than the one hour courtroom drama.

The program begins with the commission of a crime, continues with the investigation—often accompanied by strategic legal maneuvering—and reaches its climax in a dramatic courtroom scene where justice prevails in the conviction of the guilty and the exoneration of the innocent.

Since the early days of television, the plots have become more complex, exposing weaknesses in our judicial system as well as the legal and moral ambiguities that lawyers and their clients confront.

No courtroom drama can, however, capture the glacial pace with which most legal actions proceed. In general, such actions linger in the courts for years.

It is, perhaps, for this reason that the architects of Kentucky’s Open Meetings and Open Records Acts established a statutory mechanism for speedy resolution of disputes concerning the public’s right of access to meetings and records of the agencies which serve the public.

As we have noted in the past, sunshine laws like our own are premised on the recognition that “the value of information is partly a function of time.”  When the Kentucky attorney general commits to compliance with the statutory deadlines for issuing open meetings and open records decisions, as has the current office holder since September 2016, an open meetings appeal to his office must be resolved within 10 business days and an open records appeal to his office must be resolved within 20 to 50 business days.

This discrepancy exists because the Open Meetings Act establishes a fixed 10 day deadline with no statutory mechanism for extending that deadline. The Open Records Act, on the other hand, authorizes the attorney general to extend his 20 day deadline under statutorily defined “unusual circumstances”—for example, “the need to obtain additional documentation from the agency or a copy of the records involved.”

It is, by the way, the latter clearly established right that has given rise to litigation between the state’s universities and their own student newspapers that is slowly making its way through the courts. To his credit, the attorney general has intervened in those cases to defend this absolutely essential tool for resolving open records disputes presented to his office that he is guaranteed in  statute, in regulation, and in caselaw.

Whether 10 days or 50 days, Kentucky’s laws guarantee resolution of most open meetings and open records disputes in a matter of days, rather than months or years, by means of an appeal to the attorney general—a simple and user friendly process–that is unparalleled in other states and unheard of at the federal level.

Importantly, the decisions his office issues—if not appealed to circuit court within 30 days of issuance—have “the force and effect of law,” and therefore bind the parties, in both open meetings and open records disputes. This generally permits the public to pursue a legal challenge without incurring court costs and attorneys’ fees, preserves judicial resources, and promotes agency compliance with the laws.

Moreover, the attorney general’s analysis in open meetings or records appeals is—more often than not—well reasoned, well written and supported by legal authority. On past occasions when the attorney general refused to listen to the career open meetings and open records specialists on his staff, his open meetings and open records decisions have been spectacularly wrong. But these decisions are the exception rather than the rule—especially since the current attorney general awoke to the importance of his role in September 2016. He is usually right and caselaw construing the Open Meetings and Open Records Acts confirms this.

If either of the parties to an open meetings or open records appeal is dissatisfied with the attorney general’s decision, that party can challenge the decision in circuit court. Given their limited financial resources, media representatives and members of the public initiate these judicial challenges selectively and with an eye to meaningfully advancing the public’s right to know.

Public agencies, on the other hand, have deeper pockets and are therefore inclined to challenge an attorney general’s open meetings or open records decision for any number of reasons: embarrassment based on a finding that their actions violated the laws; arrogance based on a belief that their legal advisors cannot be wrong; obstructionism aimed at prolonging the legal proceedings until the issues presented are no longer relevant; and—most ominously—a desire to bully and intimidate the media or public and thereby discourage future legal challenges.

The only legitimate rationale supporting a judicial appeal of an attorney general’s open meetings or open records appeal is a good faith belief that the attorney general erred in his interpretation of the law and that a genuine issue of law exists that is appropriate for review by the courts.

On November 30, 2017, the Kentucky House of Representatives filed an appeal in the Franklin Circuit Court from an open meetings decision issued by the attorney general on November 1 determining that the House violated the Open Meetings Act when it conducted a closed meeting of a quorum of its members–without legal justification–to discuss pension reform. The Bluegrass Institute Center for Open Government challenged the House’s illegal closed session in a complaint to the Speaker of the House and an appeal to the attorney general. The Bluegrass Institute is therefore named as defendant in the appeal to the Franklin Circuit Court.

The issue presented in the appeal is an important one: whether a quorum of the members of the House of Representatives can conduct secret discussions of issues of great public importance—in this case pension reform—through the simple expedient of declaring the meetings Majority Caucus meetings which the Minority Caucus is permitted to attend. Unless the attorney general’s open meetings decision is affirmed by the courts, future legislative abuses of the Open Meetings Act may well occur.

The Bluegrass Institute Center for Open Government will vigorously defend the attorney general’s decision to ensure that the public’s right of access to legislative discussion and debate is not abridged through what is likely to be a protracted legal process. The dispute will not be resolved in a one hour courtroom drama or in 10 business days–as contemplated by the statute and as we had hoped–but we will fight this legal battle to its conclusion however long it may take.

News release: State House rejects attorney general’s ruling it violated open-meetings law, files suit against Bluegrass Institute

BIPPS Logo_pickCOG LOGOFor Immediate Release: December 26, 2017

(FRANKFORT, Ky.) — The Kentucky House of Representatives has opted to waste more taxpayer money by filing a lawsuit against the Bluegrass Institute, Kentucky’s free-market think tank, rather than acknowledge it violated the Commonwealth’s Open Meetings Act when it gathered behind closed doors last summer to discuss pension reform.

Today, attorney William Sharp of the Louisville firm Blackburn, Domene and Burchett, PLLC, and co-counsel Amye Bensenhaver, director of the Bluegrass Institute Center for Open Government, filed an answer to the House’s complaint in Franklin Circuit Court and initiated the formal discovery process by asking for records related to the Aug. 29 closed-door meeting, including written and audio records as well as any electronic or printed materials made available to that meeting’s attendees.

Legislators conducted the closed meeting one day after the release of a report by PFM Consulting offering controversial recommendations for reforming Kentucky’s ailing public-retirement systems.

House leaders filed the lawsuit against the Bluegrass Institute following the Kentucky Attorney General’s ruling supporting the Center for Open Government’s claims that none of the reasons offered by then-Speaker Jeff Hoover for preventing the public from attending justifies allowing public agencies to hold a closed meeting of a quorum of their members.

“While we were hopeful that the House would simply accept that it violated the Open Meetings Act, it unfortunately decided to waste more taxpayer money by suing the Bluegrass Institute in an attempt to justify excluding the public from its meetings,” Bensenhaver said. “That is precisely what the Open Meetings Act was designed to prevent, and we look forward to vigorously defending the public’s right to be present for such meetings.”

Bluegrass Institute president and CEO Jim Waters said elected officials have no right to shut the people out of such discussions, even those involving politically difficult policies.

“Allowing this illegal closed-door meeting behind which the greatest threat to Kentucky’s economy was discussed to go unchallenged would establish a precedent of conducting the public’s business – including politically thorny and inconvenient issues – out of the purview of that very same public,” Bluegrass Institute president and CEO Jim Waters said. “Such meetings are not in citizens’ best interests and certainly don’t foster open, accountable and accessible government.”

 For more information, contact Amye Bensenhaver at abensenhaver@freedomkentucky.com or 502.330.1816 (cell).